Estate of William Behringer v. Medical Center at Princeton

Plaintiff, William H. Behringer,*fn1 was a patient at defendant Medical Center at Princeton (the Medical Center) when on June 17, 1987, he tested positive for the Human Immunodeficiency Virus (HIV), and combined with Pneumocystis Carinii Pneumonia (PCP), was diagnosed as suffering from Acquired Immunodeficiency Syndrome (AIDS). At the time, plaintiff, an otolaryngologist (ENT) and plastic surgeon, was also a member of

the staff at the Medical Center. Within hours of his discharge from the Medical Center on June 18, 1987, plaintiff received numerous phone calls from well-wishers indicating a concern for his welfare but also demonstrating an awareness of his illness. Most of these callers were also members of the medical staff at the Medical Center. Other calls were received from friends in the community. Within days, similar calls were received from patients. Within a few weeks of his diagnosis, plaintiff's surgical privileges at the Medical Center were suspended. From the date of his diagnosis until his death on July 2, 1989, plaintiff did not perform any further surgery at the Medical Center, his practice declined and he suffered both emotionally and financially.

Plaintiff brings this action seeking damages for 1) breach of the Medical Center's and named employees' duty to maintain confidentiality of plaintiff's diagnosis and test results, and 2) violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., as a result of the imposition of conditions on plaintiff's continued performance of surgical procedures at the Medical Center, revocation of plaintiff's surgical privileges and breach of confidentiality. Defendant denies any breach of confidentiality and asserts that any action by the Medical Center was proper and not a violation of N.J.S.A. 10:5-1 et seq.

This case raises novel issues of a hospital's obligation to protect the confidentiality of an AIDS diagnosis of a health care worker, as well as a hospital's right to regulate and restrict the surgical activities of an HIV positive doctor. This case addresses the apparent conflict between a doctor's rights under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., and a patient's "right to know" under the doctrine of "informed consent." This case explores the competing interests of a surgeon with AIDS, his patients, the hospital at which he practices and the hospital's medical and dental staff.

After a bench trial and consideration of the evidence presented, this Court makes findings of fact and conclusions of law as set forth below.

To summarize, this Court holds:

1. The Medical Center breached its duty of confidentiality to plaintiff, as a patient when it failed to take reasonable precautions regarding plaintiff's medical records to prevent plaintiff's AIDS diagnosis from becoming a matter of public knowledge.

2. Plaintiff, as an AIDS-afflicted surgeon with surgical privileges at the Medical Center, was protected by the Law Against Discrimination. N.J.S.A. 10:5-1 et seq.

3. The Medical Center met its burden of establishing that its policy of temporarily suspending and, thereafter, restricting plaintiff's surgical privileges was substantially justified by a reasonable probability of harm to the patient.

4. The "risk of harm" to the patient includes not only the actual transmission of HIV from surgeon to patient but the risk of a surgical accident, i.e., a scalpel cut or needle stick, which may subject the patient to post-surgery HIV testing.

5. Defendant Medical Center, as a condition of vacating the temporary suspension of plaintiff's surgical privileges, properly required the plaintiff, as a physician with a positive diagnosis of AIDS, to secure informed consent from any surgical patients.

6. The Medical Center's policy of restricting surgical privileges of health care providers who pose "any risk of HIV transmission to the patient" was a reasonable exercise of the Medical Center's authority as applied to the facts of this case, where plaintiff was an AIDS-positive surgeon.*fn2

I.

A.

Plaintiff, a Board-certified ENT surgeon, developed a successful practice during his ten years in the Princeton area. His practice extended beyond the limited area of ear, nose and throat surgery and included a practice in facial plastic surgery. He served as an attending physician at the Medical Center since 1979 and performed surgery at the Medical Center since 1981.

In early June 1987, plaintiff felt ill. He complained of various symptoms and treated himself. Acknowledging no improvement, plaintiff consulted with a physician-friend (the treating physician). On June 16, 1987, plaintiff's companion arrived at plaintiff's home and observed that plaintiff was in distress. A call was made to the treating physician, and at approximately 11:00 p.m., plaintiff and his companion proceeded to the Medical Center Emergency Room, where plaintiff was examined initially by a number of residents and, thereafter, by the treating physician. The treating physician advised plaintiff that a pulmonary consultation was necessary, and a pulmonary specialist proceeded to examine plaintiff. A determination was made to perform a bronchoscopy -- a diagnostic procedure involving bronchial washings -- to establish the existence of PCP, a conclusive indicator of AIDS. The pulmonary consultant assumed that plaintiff, as a physician, knew the implications of PCP and its relationship to AIDS. In addition, the treating physician ordered a blood study including a test to determine whether plaintiff was infected with HIV -- the cause of AIDS.

Plaintiff's companion has no recollection of specific information being transmitted to plaintiff regarding the HIV test, nor does she recollect any specific "counselling" or explanation being given to plaintiff about the significance, impact or confidentiality of a positive result of the HIV test. While the companion specifically denies any direct conversation between plaintiff and his doctors regarding the HIV test, the pulmonary consultant indicated that during his conversation with plaintiff, the pulmonary consultant discussed PCP as one of a number of possible diagnoses resulting from the test. Plaintiff was admitted to the Medical Center that evening.

Conforming to Medical Center policy, plaintiff executed a consent form granting to the pulmonary consultant the general consent to perform a bronchoscopy. In addition, plaintiff executed a special consent form granting specific consent to perform an HIV blood test. During the morning of June 17, 1987, plaintiff submitted to a bronchoscopy and returned to his room

in the afternoon, where he was described as "sedated" and "out of it." Later that day, the pulmonary consultant reported to plaintiff that the results of the tests were positive for PCP, and he concluded that this information was new to plaintiff. Early that evening, the treating physician returned to plaintiff's room, and in the presence of plaintiff's companion, informed plaintiff that the HIV test was positive. Plaintiff was also informed that he had AIDS. Plaintiff's reaction, according to plaintiff's companion, was one of shock and dismay. His emotions ranged from concern about his health to fear of the impact of this information on his practice. Plaintiff's companion described her initial response as "who else knew?" The treating physician responded that he had told his wife; both plaintiff and his companion, close personal friends of both the treating physician and his wife, responded that "they understood."

It was readily apparent to all persons involved at this point that plaintiff's presence in the Medical Center was cause for concern. An infectious disease consultant and staff epidemiologist suggested to plaintiff that he transfer to Lenox Hill Hospital in New York or other available hospitals in the area. After inquiry, it was determined that no other beds were available. This concern for an immediate transfer appeared to be two-fold -- to insure the best available treatment for plaintiff (the treating physician suggested that AZT treatment be considered) and to prevent plaintiff's diagnosis from becoming public. It is apparent that all parties involved to this point -- plaintiff, the treating physician, the epidemiologist and plaintiff's companion -- fully understood the implications of the AIDS diagnosis becoming a matter of public knowledge. A determination was made that plaintiff would leave the hospital and be treated at home. Plaintiff was discharged from the hospital on the afternoon of June 18, 1987. To minimize the significance of his condition, plaintiff walked out of the hospital rather than following the normal Medical Center practice of being wheeled out.

Plaintiff's concern about public knowledge of the diagnosis was not misplaced. Upon his arrival home, plaintiff and his companion received a series of phone calls. Calls were received from various doctors who practiced at the Medical Center with plaintiff. All doctors, in addition to being professional colleagues, were social friends, but none were involved with the care and treatment of plaintiff. All indicated in various ways that they were aware of the diagnosis. Statements were made either directly to plaintiff's companion or by insinuation, such as an inquiry as to whether the companion was "tested." She did not deny references to the diagnosis but admits that she "tacitly acknowledged the diagnosis in one instance by silence." During the evening of June 18, she received a call from social non-medical friends who indicated their knowledge of the diagnosis and expressed support to her and plaintiff. She indicated that the relationships with various neighbors and friends changed as a result of the diagnosis. There was less social contact and communication and what she perceived as a significant diminution in the popularity of plaintiff.

Plaintiff's condition and the growing awareness of that condition in the community impacted upon not only plaintiff's social relationships but, more significantly, on his practice as well. In July, 1987, plaintiff returned to his office practice. During his short absence from his office and in the ensuing months, calls were received at his practice from doctors and patients alike who indicated an awareness of plaintiff's condition and in many cases, requested transfer of files or indicated no further interest in being treated by plaintiff. At one point plaintiff's companion instructed Jeannie Weinstein, plaintiff's receptionist, not to confirm any information regarding AIDS, and "instruct patients that plaintiff did not have AIDS." Over an extended period of time, the practice diminished as more of plaintiff's patients became aware of his condition.

Cancellations continued at an exceedingly high rate. The effect of plaintiff's condition was not limited simply to patient relationships, but affected employees, as well. As early as June

18, 1987, Ms. Weinstein, a long-standing employee of plaintiff, received an office telephone call from a local physician inquiring as to whether plaintiff had AIDS. Ms. Weinstein responded that she knew nothing about it but, thereafter, met with other employees in the office and told them of the phone call. During the two-week period after this call, some fifteen to twenty calls were received from various patients indicating knowledge of plaintiff's condition. An extensive list was prepared by Ms. Weinstein indicating cancellation of appointments and patient requests for records. The list, for reasons not sufficiently explained, was kept only until September, 1987, when the listing stopped. During this period, three employees left plaintiff's employ and a replacement employee left one day after being hired upon learning that plaintiff had contracted AIDS. During the two years following his AIDS diagnosis, plaintiff suffered from an ulcer, was hospitalized for one week for a virus, and as a result of his AIDS condition, lost sight in one eye. Plaintiff continued in an office practice until his death on July 2, 1989.

B.

The Medical Center's reaction to plaintiff's condition was swift and initially precise. Upon learning of plaintiff's diagnosis from the Chief of Nursing, the President of the Medical Center, defendant Dennis Doody (Doody), immediately directed the cancellation of plaintiff's pending surgical cases. This initial decision was made with little information or knowledge of potential transmission of the disease; thereafter, the Chairman of the Department of Surgery, having privately researched the issue, reached a contrary result and urged that plaintiff could resume his surgical practice. The Medical Center procedure for suspending a physician's surgical privileges provides for summary suspension by a vote of the Department chair, President of the Medical Center, President of the Medical and Dental Staff, Chairman of the Board of Trustees, and the physician in charge of the service. While Doody was defeated in a vote for summary suspension, the surgery remained cancelled,

Doody's motivation in seeking the suspension of surgical privileges was described as one of concern for patients but also, and perhaps more important, concern for the Medical Center and its potential liability. Little was known about the dilemma now facing the Medical Center. In any event, plaintiff's surgical privileges were cancelled and would never, during plaintiff's life, be reinstated.

During the ensuing months, the Medical Center embarked on a torturous journey which shifted course as views were explored and, ultimately, a consensus reached between the Medical and Dental Staff, hospital administration and the Board of Trustees.

On July 2, 1987, plaintiff privately informed the Chairman of the Department of Surgery at the Medical Center of his medical condition. Plaintiff felt that the Chairman of his department should know of his health status and informed the chair that plaintiff wished to continue to practice, including performing surgery.

Doody called a Special Meeting of the Executive Committee of the Medical and Dental Staff which took place on July 13, 1987. The Medical and Dental Staff is a body of physicians and dentists operating under the aegis of the Board of Trustees of the hospital. The Board approves the Staff's by-laws and retains ultimate decision-making authority. At this meeting, the Executive Committee passed a motion holding that "HIV positivity alone is not a reason for restricting a Health Care Worker from [the performance of] invasive procedures on the basis of data currently available." Defendant Doody, the lone dissenter, admittedly presented no scientific or medical basis for disagreeing with the Committee's recommendation. Both the medical literature from the Centers for Disease Control (CDC) and other authorities that were discussed, as well as defendant Medical Center's staff epidemiologist noted that there

were no known cases of transmission of HIV from a health care worker (HCW) to a patient. Later, however, the epidemiologist recommended to defendant Doody that an HIV-infected surgeon should not operate. Defendant Doody acknowledged at trial, and believed at the time of the Special Meeting, that the CDC was "the number one resource on infectious disease in the United States."

A second meeting of the Executive Committee of the Medical and Dental Staff was held on July 16, 1987 to continue discussing the issues raised by plaintiff's medical condition. The Committee maintained its recommendations that, based on all available, current scientific information, a surgeon with AIDS or one who is HIV-positive should retain all of his privileges, should be subject to careful monitoring for competence and should follow CDC-recommended precautions for invasive procedures. At this meeting, the physicians who were present concluded that there was no risk of transmission that would require an HIV-positive surgeon to disclose that fact to a patient as part of informed consent. However, Doody and the Medical Center's legal counsel offered the opinion that despite the absence of reported cases of transmission from HCW to patient, a physician's HIV-positive status should be divulged in any informed consent form because of "legal and social considerations." The Committee concluded that a full meeting of the Board of Trustees was necessary to resolve the issue.

A special meeting of the Board of Trustees was held on July 20, 1987. At this meeting the Board of Trustees was addressed by the Chairman of the Department of Surgery, the Medical Center's staff epidemiologist, as well as physicians comprising the Executive Committee of the Medical and Dental Staff, who reiterated that no cases of HIV transmission from HCW to patient had ever been reported. At the meeting, the issue of informed consent was discussed at length. All members of the Board of Trustees were provided with a packet of information that included current CDC statements regarding performance of invasive procedures by HCW's and copies of the Minutes of

the Medical and Dental Staff Executive Committee meetings, including a letter from the staff to the Board setting forth the staff's position. Doody and the Board were also informed that CDC-recommended operating room precautions were expected to prevent HIV transmission. The Board of Trustees was told that the CDC recommended individualized decision-making for HIV-positive HCWs, suggesting that decisions regarding continued practice by an HIV-positive physician should be made on a case-by-case basis. Doody expressed concern about the hospital's reputation as well as potential litigation given public fear of AIDS. After consideration of all of the information presented, the Board voted to require the use of a special "informed consent form" to be presented to patients about to undergo surgery by HIV-positive surgeons. The form read as follows:

THE MEDICAL CENTER AT PRINCETON, NEW JERSEY

SUPPLEMENTAL CONSENT FOR OPERATIVE AND/OR

INVASIVE PROCEDURE

I have on this date executed a consent, which is attached hereto, for (Procedure) to be performed by Dr. //////////////--. In addition, I have also been informed by Dr. //////////////--, that he has a positive blood test indicative of infection with HIV (Human Immunodeficiency Virus) which is the cause of AIDS. I have also been informed of the potential risk of transmission of the virus. (witness) (signature of patient)

All parties recognized that in the absence of patients willing to undergo invasive procedures by HIV-positive surgeons, this was a "de facto prohibition" from surgical practice. Subsequent to the July 20, 1987 meeting of the Board of Trustees, various committees met as the issues concerning HIV-positivity and HCWs continued to be discussed at the Medical Center. To further explore the issues, three meetings of the Joint Conference Committee of the Board of Trustees and the Medical and Dental Staff were held and are especially noteworthy. These

meetings occurred on October 29, 1987, November 19, 1987, and December 17, 1987. At the first meeting, the epidemiologist spoke about the medical information available concerning the issue of an HIV-positive surgeon performing invasive procedures. At the second meeting, Robert Cassidy, Ph.D., an ethicist and a member of the faculty of the Robert Wood Johnson Medical School, discussed the legal requirements for informed consent in New Jersey. At the third meeting, Paul Armstrong, Esquire, presented the report of the Council on Ethical and Judicial Affairs of the American Medical Association, which deals with the issue of AIDS in the health care environment. The American Medical Association report contains among its recommendations the following:

The Council's new opinion on PHYSICIANS AND INFECTIOUS DISEASES is:

A physician who knows that he or she has an infectious disease should not engage in any activity that creates a risk of transmission of the disease to others.

In the context of the AIDS crisis, the application of the Council's opinion depends on the activity in which the physician wishes to engage.

The Council on Ethical and Judicial Affairs reiterates and reaffirms the AMA's strong belief that AIDS victims and those who are seropositive should not be treated unfairly or suffer from discrimination. However, in the special context of the provision of medical care, the Council believes that if a risk of transmission of an infectious disease from a physician to a patient exists, disclosure of that risk to patients is not enough; patients are entitled to expect that their physicians will not increase their exposure to the risk of contracting an infectious disease, even minimally. If no risk exists, disclosure of the physicians's medical condition to his or her patients will serve no rational purpose; if a risk does exist, the physician should not engage in the activity.

Mr. Armstrong concluded his remarks by stating that the above provided a standard with regard to HCWs with HIV seropositivity or AIDS which had not existed prior to its promulgation.

At the conclusion of the meeting on December 17, 1987, it was suggested that if the Board of Trustees was to change its policy regarding HIV-positive surgeons, the impetus for such change should come from the Medical and Dental Staff. The President of the Medical and Dental Staff agreed that the issue would be addressed at the January meeting of the staff's Executive Committee.

At its January 25, 1988 meeting, the staff's Executive Committee, after lengthy discussion, recommended that the following policy be adopted by the Board of Trustees:

1. The Medical Center at Princeton Medical and Dental Staff will continue to care for patients with AIDS without discrimination.

2. A physician or Health Care provider with known HIV seropositivity will continue to treat patients at the Medical Center at Princeton, but will not perform procedures that pose any risk of virus transmission to the patient.

This policy was proposed to the entire Medical and Dental Staff, and on February 11, 1988, a meeting of the full Medical and Dental Staff was held, at which time this new policy regarding HIV seropositive surgeons was discussed. A recommendation was forwarded to the Board of Trustees that this two-part policy be adopted.

On June 27, 1988, the Board of Trustees met and, after questions and discussions, adopted the following policy for HIV seropositive health care workers:

POLICY FOR HIV SEROPOSITIVE HEALTH CARE WORKERS

1. The Medical Center at Princeton Medical and Dental Staff shall continue to care for patients with AIDS without discrimination.

2. A physician or health care provider with known HIV seropositivity may continue to treat patients at The Medical Center at Princeton, but shall not perform procedures that pose any risk of HIV transmission to the patient. (emphasis added)

This policy included a procedure for the recredentialling of physicians.*fn3 Although the policy was adopted, the Board did

not change its prior requirement that a physician obtain written informed consent from the patient prior to the performance of surgical procedures.

Plaintiff's privileges, as a "potential risk," were ultimately suspended under this policy, and no action was taken by him challenging the policy or seeking recredentialling under the policy.

Following his diagnosis of AIDS, plaintiff never again performed surgery at the Medical Center.

C.

The administration of plaintiff's blood test, resulting in a finding of HIV positivity, warrants a critical examination of the testing procedures and efforts made by Medical Center to insure confidentiality of results.

In 1985, the Medical Center began testing blood for HIV seropositivity for its blood bank. Since HIV testing was available for blood donors, HIV testing was also made available to staff physicians, both for in-patients and out-patients. Initially, the reporting procedures for both in-patients and out-patients required the physician to submit the blood to the laboratory with only a code number. After the test was completed, the results were returned to the physician under the code number, without the patient's name. This procedure was approved by the New Jersey Department of Health. The testing procedure was administered by the Department of Laboratories under the direction of defendant Leung Lee, M.D., (Lee) and the actual responsibility for implementation of the procedure was delegated to Ilana Pachter, M.D., at that time an employee of Medical Center.

By 1986, many hospitals began to realize that the established procedures were unworkable for in-patients. In 1986, a meeting was held by the New Jersey Department of Health, which was attended by representatives of many New Jersey hospitals, including Dr. Pachter of the Medical Center. The consensus at the meeting was that in-patient testing could not be conducted under a code number system for a variety of reasons including lack of cooperation by members of the medical staff. In addition, it was felt that HIV positive status was an important medical fact that should be included within a patient's medical chart.

In response to this meeting, the Department of Health issued new guidelines in October 1986 dealing with the reporting of HIV results for hospital in-patients. The new guidelines included the following:

1) Testing facilities must make reasonable efforts to maintain confidentiality.

2) For in-patients and clinic out patients, specimens may be received with the patient's name on them. These specimens must be encoded, (e.g., assignment of lab I.D. numbers) in the laboratory before testing occurs, so that test results do not appear with the patient's name in the laboratory's work records. The results of these assays may be placed on the patient chart in the same manner as other routine tests.

These stated procedures were designed to recognize and deal appropriately with the issue of confidentiality. While health care facilities recognized the need for confidentiality, an additional, yet critical, element of HIV test protocol required communication with the patient. This communication took the form of pre-test counselling of patients prior to the administration of the HIV test.

Pre-test counselling for HIV blood tests has been the standard of practice since the beginning of HIV testing. Such counselling includes discussion about the disclosure of test results and an identification of those having access to test results. Before HIV tests are given, patients are counselled as to the privacy and confidentiality implications of being identified as HIV-infected. These implications are explained to symptomatic and asymptomatic patients alike. Members of the

Medical Center's Department of Laboratories attended New Jersey Department of Health seminars prior to June, 1987, at which pre-test counselling was addressed.

Pre-test counselling was not a procedure limited to New Jersey. It was recommended by public health authorities, including the CDC prior to June, 1987. In 1987, accepted medical practice called for patient counselling concerning, inter alia, privacy and confidentiality prior to obtaining consent for an HIV test.

While no question was raised at trial that the responsibility for pre-test counselling appropriately rested with the treating physician, the record is devoid of any suggestion that any pre-test counselling of plaintiff, either in oral or written form, took place during the period June 16 to June 18, 1987. While plaintiff was by profession a physician, he was during this period a patient at the Medical Center. No one in this litigation suggests that plaintiff was not entitled to all of the protections afforded any other patient. The informed consent form promulgated by the Department of Laboratories at the Medical Center and signed by plaintiff, does little to correct this apparent deficiency. The form provides as follows:

CONSENT FORM. . . .

I William Behringer hereby give my consent to the Medical Center at Princeton to have my blood tested for antibodies to HTLV III Virus as ordered by my physician. The results of the test will be reported only to the ordering physician.

Date 6/17/87 Patient signature (s)William Behringer

Witness (illegible)

PATIENT CODE NO. 865353

The test was ordered by the treating physician on admission and administered sometime on June 17, 1987. The informed consent form indicated a time of 1:00 p.m.. At approximately 2:00 p.m., the infectious disease specialist went to the Department

of Laboratories at the Medical Center to determine the status of plaintiff's HIV blood test. Upon learning that the test had not been conducted, the infectious disease specialist asked Lee to conduct the test on an expedited basis. Lee agreed and instructed the Blood Bank Supervisor to conduct the test as soon as possible. Plaintiff's name was identified to the supervisor by the infectious disease consultant and Lee. Since plaintiff's blood sample was already in the lab, the sample had been given a code number, and plaintiff's name was removed from the sample. Plaintiff's name and code number had been placed in a locked filing cabinet pursuant to laboratory procedures. The supervisor went to the locked file cabinet, looked up plaintiff's name and obtained the code number for his blood sample. The blood sample was then located by reference to the code number and was given to a laboratory technician with instructions to conduct the HIV test. This occurred sometime between 2:30 and 3:30 p.m. The technician was not provided with the name of the patient for whom the HIV test was being conducted.

Since the technician left work at 3:30 p.m. each day and since the test takes approximately four hours, she did not conclude the test and thus did not learn the results. The test was concluded by the supervisor at approximately 6:00 p.m., at which time the results, which were positive, were relinked to the plaintiff's name in the record maintained in the locked file cabinet pursuant to the standard procedures followed by the Department of Laboratories.

Prior to the test, the infectious disease specialist who had requested the test be conducted asked Lee to telephone him with the results as soon as they became available. Accordingly, Dr. Lee instructed the supervisor to telephone him at home with the results as soon as they were available.

Early that evening, the supervisor called Dr. Lee at home and informed him that plaintiff's HIV test was positive. As he had

been instructed, Dr. Lee called the infectious disease specialist and ...

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